Tuesday, 19 March 2013

A Mild Winter? Sgt Danny Nightingale's 'Improper' Defence

On the 13th March 2013, Sgt Danny Nightingale was freed by the Court of Appeal, after his conviction for possession of a firearm was quashed and a retrial ordered. The basis for this decision was the 'improper pressure' applied to Nightingale to plead guilty prior to the military trial he was entitled to. The clear implication of this was that Nightingale's defence lawyer, Ian Winter QC, had failed in his duty to adequately protect his client's interests.

The case is interesting not only as an examination of the proper role of the defence lawyer, but also as a warning about the relationship between defence lawyers and judges. Winter's role as a defence lawyer was to protect the interests of the client; this should include presenting the case the client wants (obviously avoiding perjury) and vigorously questioning the prosecution. As far as I am aware, defence lawyers in Courts Martial are bound by the same ethical codes as your average criminal defence lawyer (SRA Code of Conduct, BSB Code of Conduct, etc). If there is a separate code for military lawyers, I would be keen to read it. 

Regardless, one can presume that as a minimum Winter would be obliged to fulfil the reasonable wishes of the client by presenting the defence he desires. It is pretty well established that Danny Nightingale claimed to be innocent; this was widely covered by the media, and included a high profile campaign by his wife. It is thus puzzling that his lawyer suggested he plead guilty (at least by implication). Winter explained that the judge had told him that a 5 year sentence was likely should Nightingale proceed to defend himself and be convicted. In contrast, a guilty plea would be unlikely to attract a custodial sentence. The Court of Appeal suggested that, with the cooperation of the defence lawyer, this amounted to 'improper pressure' on the defendant.

As such, Winter arguably failed to perform his duty - by acting as a messenger for the judge, he was complicit in a not terribly subtle attempt to end matters quickly by extracting a guilty plea. This seemed to be in direct contrast to Nightingale's repeated protestations of innocence. Winter helped facilitate the interests of the Court rather than those of the defendant, failing in the requirement to protect and defend the client. Certainly, this was far from the zealous advocacy an embattled defendant, claiming innocence, would need. The result, of course, was a miscarriage of justice which now appears to be rectified.

This sort of plea bargaining has now become a fairly common feature of the 'guilty plea' culture encouraged in England and Wales. Various carrots and sticks have been created to encourage guilty pleas, and although many will be accurate and save time and money, plenty will result in an unfair and unjust result. The defence lawyer's role in the system is protect the defendant and ensure that a conviction is legitimate. It is highly questionable whether cooperation of this nature fulfils this brief. The entrenched incentivisation of guilty pleas has thus had a substantial impact (among many other things) on the role of the defence lawyer, diluting 'zealous' advocacy with 'cooperative' advocacy. How good this is depends on your point of view, but Danny Nightingale would probably consider it to be negative.

Finally, the relationship between defence lawyers and judges should certainly be questioned in this context. It is unclear how often judges provide an 'uninvited' indication of sentence, but the post-Criminal Procedure Rules ethos of openness, cooperation, dialogue, and focus on the 'real issues' encourages closer procedural relationships between the bench and lawyers. How close to negotiation of plea this comes is, again, not clear. Too cosy a relationship between judges/magistrates and defence lawyers - for whom saving both time and money are undeniable factors in the modern criminal justice system - is dangerous as client interests may be relegated. Danny Nightingale appears to have been a victim of too much cooperation between the Court and the defence; hopefully this sort of 'improper pressure' isn't as common in Magistrates' and Crown Courts across the land.

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